Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

A parliamentary assistant

A political party

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012497-001

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012497-002

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012497-003

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00012497-004

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012497-005

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012497-006

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012497-007

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012497-008

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012497-009

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012497-010

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012497-011

12/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012497-012

12/07/2017

Complaints Against Three Respondents

In his letter accompanying the complaint forms, on behalf of the complainant, Mr Grogan wrote:

“We attach 3 claims which are all inter related. Not 100% sure who the correct employer is as our client worked in the Dáil.”

Three identical complaints were submitted:

ADJ-0009565 against a Teachta Dála (TD);

ADJ-0009559 against this respondent, the political party of which the TD is a member;

ADJ-0009566 against the body governing the delivery of services to the Houses of the Oireachtas (“the Service Provider”).

As a preliminary issue therefore, from the three named respondents, I have to decide who the complainant’s employer was.

Contract Between the Complainant and the Respondent TD

At the hearing of this complaint, the respondent TD stated that he was the complainant’s employer and that he agreed to employ her in June 2016. Evidence was presented of a contract of employment signed on July 21st 2016 by the complainant as the “employee” and the respondent as the “employer.”

On page 1 of the contract, the relationship with the Service Provider is set out:

“A   Following the General Election for Dáil Eireann held on 26th February, the Employer was elected as a member of the 32nd Dáil and, in this capacity and further subject to the terms of this Contract, wishes to employ the Employee in accordance with the terms of this contract.

“B The (Service Provider) facilitates the provision of a payroll mechanism for the remuneration of the Employee by the Employer within that Employer’s statutory entitlement, the (Service Provider) not being the employer of the Employee and all matters relating to the employment of the Employee being matters solely for the Employer.

“C The Employee is willing and hereby agrees to be employed on a specified purpose contract on the terms set out herein.”

In a submission presented by a representative of the Service Provider, I was informed that this contract is provided for in a Statutory Instrument enacted in 2016, Oireachtas (Ministerial and Parliamentary Offices) (Secretarial Facilities) Regulations 2016, (SI 599/2016). Regulation 12 provides that:

“A person providing secretarial facilities under these Regulations is the employee of the member or qualifying party to whom the facility is provided under a contract of employment made between them.”

The Regulations provide that a parliamentary assistant is an employee of the member of the Dáil OR the party who has qualified for the funds to employ someone. In the case of this complainant, she was an employee of the Dáil deputy and her contract of employment is patently clear on that matter.

Case Law

At the hearing, the Service Provider referred to two precedents addressing the employment status of parliamentary secretarial assistants. In the first, the extempore judgement of Keane J in the High Court in Anne Holliday v Houses of the Oireachtas and Another, JR 75/93, the High Court ruled that a parliamentary secretary was an employee of the Dáil Deputy. In this judgement, the High Court criticised the absence of regulation of the scheme for the employment of PAs and this has now been remedied with the enactment of SI 599/2016.

In an Employment Appeals Tribunal case of Blackbyrne v Pringle and Others, UD 432/2012, the chairman found that, on the retirement of Deputy Pringle TD, the complainant could not claim to be an employee of the Service Provider and she stated that the ruling in the Holliday case “continues to be good law.”

Conclusion

The complainant was never an employee of the political party of which the TD is a member, the respondent named in this complaint. From her contract, and, in accordance with SI 599/2016, it is apparent that she was not an employee of the Service Provider. The TD was the complainant’s employer from June 9th 2016 until February 3rd 2017 and I agree with him that he is the appropriate respondent with regard to these complaints.

Having established that the respondent named in this complaint was not the complainant’s employer, I have decided to dismiss these complaints.

Identify of the respondent